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Appeal heard on February 16, 2004, at Windsor, Ontario,

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JUDGMENT

          The appeal from the assessment of tax made under the Income Tax Act for the 2001 taxation year is dismissed.

Signed at Ottawa, Canada, this 24th day of February, 2004.

Bowie J.

REASONS FOR JUDGMENT

Bowie J.

[1]      Mr. Boulay appeals from his assessment for income tax for the year 2001. At issue is his claim that he is entitled to deduct $4,200 from his income under paragraph 60(b) of the Income Tax Act (the Act) for child support that he says he paid, and was required by a Court order to pay, in respect of his son Chadwick. The Minister of National Revenue assessed the Appellant on the basis that he was not entitled to any deduction for child support. The appeal was heard under the informal procedure of this Court.

[2]      It is clear beyond any doubt that for the Appellant to be entitled to the deduction that he seeks he must be able to show that the amounts in question can be said to fall within the definition of the phrase "support amount" as it appears in subsection 56.1(4) of the Act. It reads:

56.1(4) The definitions in this subsection apply in this section and section 56.

"support amount" means an amount payable or receivable as an allowance on a periodic basis for the maintenance of the recipient, children of the recipient or both the recipient and children of the recipient, if the recipient has discretion as to the use of the amount, and

(a)         the recipient is the spouse or common-law partner or former spouse or common-law partner of the payer, the recipient and payer are living separate and apart because of the breakdown of their marriage or common-law partnership and the amount is receivable under an order of a competent tribunal or under a written agreement; or

(b)         the payer is a natural parent of a child of the recipient and the amount is receivable under an order made by a competent tribunal in accordance with the laws of a province.

The issue before me is simply whether any of the payments that Mr. Boulay made for the support of his son in 2001 meet that definition.

[3]      I should say at the outset that I have a great deal of sympathy for the position that Mr. Boulay finds himself in. He was a forthright and honest witness, and I have no doubt that for the twenty years or so that he and his ex-spouse have been apart he has been a caring and generous parent, contributing to the support and the education of his children not just as required to do by the Court orders involved, but according to their needs from time to time. He now finds himself faced with a reassessment disallowing all his claim for support in the year 2001, and to a large extent that is the result of seemingly conflicting provisions in two Court orders, and of course the labyrinthine provisions of the Act, couched as they are in what must seem to him language spawned by a tortured mind.

[4]      It is now slightly more than twenty years since Mr. Boulay and his former spouse, Loreen, parted company. He lives in Windsor, Ontario and she in Belleville, Ontario. Two decisions of the Ontario Courts dealing with their affairs were entered into evidence. On October 12, 1983 His Honour Judge Houston made an Order, on consent, giving custody of the two children of the marriage to Loreen. This appeal concerns only the younger, Chadwick, who was born on October 11, 1980. Judge Houston made detailed provisions for the support payments to be made by the Appellant to Loreen. He ordered him to pay $175.00 per month, per child, to be paid at the beginning of each month and to continue until age eighteen, or twenty-one if the child continued to be in full-time attendance at an educational institution, and also continued to reside with Loreen. He specifically provided that going away to university, or to take a summer job or a vacation, did not amount to leaving Loreen's household.[1] Judge Houston also made elaborate provision for indexing the payments to the lesser of the Consumer Price Index or Mr. Boulay's percentage increase in income each year over that of the previous year.

[5]      After some years, Mr. Boulay began proceedings for divorce. The action was uncontested, and he was granted a divorce Judgment on July 12, 1990 by Mr. Justice Doyle. It included ancillary provisions whereby Loreen continued to have custody of the children, and Mr. Boulay was required to pay $200.00 per month for support of each child. It does not contain any provision for indexing the support payments, nor for their termination.

[6]      Judge Houston's Order appears to be a final Order, but it does not specify the nature of the proceeding in which it was made. Justice Doyle's Judgment is certainly final. They have differing provisions as to the support payments to be made, and cannot both operate at the same time. I have no doubt that Judge Doyle's Judgment displaces the earlier Order made by Judge Houston.

[7]      In October 1998, Chadwick reached the age of 18. He had just begun studies at McGill University in Montreal, Quebec. He is still there, engaged in post-graduate studies. Since September 2000, he has lived full-time in Montreal, enrolled in a Master of Science program, and working at the University during the summer recess. Mr. Boulay testified that at some time during the year 2000, Loreen told him to make the support payments directly to Chadwick, who by then was living more or less full-time in Montreal. She said that as she simply passed the money on to him, it would reach him more quickly if his father sent the cheques to him directly. He also testified that in 2001, he sent $400.00 directly to Chadwick each month, but he accepts that his entitlement to deduct these amounts stops with the October cheque, as that was the last payment before Chadwick reached the age of 21.

[8]      The only significance of the age 21 in this case disappeared when Judge Doyle gave judgment in the divorce action, thereby displacing the termination provisions in Judge Houston's earlier Order. The age of majority in both Ontario[2] and Quebec[3] is 18. It appears from the Reply to the Notice of Appeal that the Minister, when assessing, simply took the view that in the absence of any specific provision for termination in a judgment for child support, the requirement would end automatically upon the child reaching the age of majority. Certainly this is the way in which the Deputy Attorney General of Canada has pleaded the case. That is not the law, however. Rip J. stated the relevant principle succinctly in Robinson v. The Queen:[4]

Custody implies that the child submit himself or herself to parental control and is dependent to a certain extent. This is a determination that must be made on the facts and is not necessarily dependent upon age, although an adult child has a greater onus than a minor does to prove that he or she is under the custody of a parent.

[9]      Since only payments that the Appellant was required by law to make come within the definition of "support amount", the onus is on the Appellant in this Court to show that Chadwick was under his mother's control during the year 2001. The evidence before me falls far short of discharging that burden. In fact, all the evidence tends to point in the other direction. According to Mr. Boulay's evidence (and it is the only evidence before me), his son had been living away from his mother's home for more than a year by the beginning of 2001. There was no evidence whatsoever that he subjected himself to her authority during this period of his life. I find that Mr. Boulay was no longer bound to make support payments for Chadwick by the beginning of 2001, and so the payments that he made were voluntary, and therefore did not meet the definition of "support amount".

[10]     The appeal is dismissed.

Signed at Ottawa, Canada, this 24th day of February, 2004.

Bowie J.